Single Payer’s Road to Rationing

The reintroduction of Democrats’ single-payer legislation has some families contemplating what total government control of the health-care sector would mean for them. Contrary to the rhetoric coming from liberals, some of the families most affected by a single-payer system want nothing to do with this brave new health care world.

As this father realizes, giving bureaucrats the power to deny access to health care could have devastating consequences for some of the most vulnerable Americans.

Determining the ‘Appropriate’ Use of Medical Resources

To summarize the Twitter thread: The father in question has a 12-year-old son with a rare and severe heart condition. Last week, the son received an implantable cardioverter defibrillator to help control cardiac function.

But because the defibrillator is expensive and cardiologists were implanting the device “off-label”—the device isn’t formally approved for use in children, because few children need such a device in the first place—the father feared that, under a single-payer system, future children in his son’s situation wouldn’t get access to the defibrillator needed to keep them alive.

The father has reason to worry. He cited a 2009 article written by Zeke Emanuel—brother of Rahm, and an advisor in the Obama administration during the debate on Obamacare—which included the following chart:

The chart illustrates the “age-based priority for receiving scarce medical interventions under the complete lives system”—the topic of Emanuel’s article. If a picture is worth a thousand words, then this chart sure speaks volumes.

Also consider some of Emanuel’s quotes from the same article, in which he articulates the principles behind the allocation of scarce medical resources:

Adolescents have received substantial education and parental care, investments that will be wasted without a complete life. Infants, by contrast, have not yet received these investments.
The complete lives system discriminates against older people….[However,] age, like income, is a ‘non-medical criterion’ inappropriate for allocation of medical resources.

If those quotes do not give one pause, consider another quote by Zeke Emanuel, this one from a 1996 work: “[Health care] services provided to individuals who are irreversibly prevented from being or becoming participating citizens are not basic and should not be guaranteed. An obvious example is not guaranteeing health services to patients with dementia.” When that quote resurfaced during the debate on Obamacare in 2009, Emanuel attempted to claim he never advocated for this position—but he wrote the words nonetheless.

The Flaw in Centralized Decision-Making

The father in his Twitter thread hit on this very point. Medical device companies have not received Food and Drug Administration approval to implant defibrillators in children in part because so few children need them to begin with, making it difficult to compile the data necessary to prove the devices safe and effective in young people.

Likewise, most clinical trials have historically under-represented women and minorities. The more limited data make it difficult to determine whether a drug or device works better, worse, or the same for these important sub-populations. But if a one-size-fits-all system makes decisions based upon average circumstances, these under-represented groups could suffer.

To put it another way: A single-payer health care system could deny access to a drug or treatment deemed ineffective, based on the results of a clinical trial comprised largely of white males. The system may not even recognize that that same drug or treatment works well for African-American females, let alone adjust its policies in response to such evidence.

A ‘Difficult Democratic Conversation’

The chronically ill and those toward the end of their lives are accounting for potentially 80 percent of the total health care bill out here….There is going to have to be a conversation that is guided by doctors, scientists, ethicists. And then there is going to have to be a very difficult democratic conversation that takes place.

Some would argue that Obama’s mere suggestion of such a conversation hints at his obvious conclusion from it. Instead of having a “difficult democratic conversation” about ways for government bureaucrats deny patients care, such a conversation should center around not giving bureaucrats the right to do so in the first place.

This post was originally published at The Federalist.

Kamala Harris Discovers Liberals’ New Health Care Motto

More than a decade ago, Barack Obama ran for president repeatedly pledging that under his health care platform, “If you like your plan, you can keep it.” Of course, that promise turned out not to be true—millions of Americans received cancellation notices as Obamacare took effect, and PolitiFact named Obama’s campaign pledge its “Lie of the Year.”

Given that tortured history, liberals appear to have come up with a simple and succinct slogan to explain their next round of health “reform:”: “If you like your current plan, go f— yourself.”

Medicare for None

Moderator Jake Tapper claimed during the discussion that Harris supports “Medicare for All,” but in reality, the legislation she co-sponsored during the last Congress would eliminate Medicare, along with every other existing form of health insurance save two: the Indian Health Service and Veterans Administration coverage. In short, Harris supports nearly 300 million Americans losing their current form of health coverage.

Patronizing Paternalism

Just as telling: Harris’ blithe dismissal of Americans who might prefer to keep their existing insurance. She claimed that, under single payer, “You don’t have to go through the process of going through an insurance company, having them give you approval, going through the paperwork.” Never mind that single payer systems have long waiting lists, which bring paperwork of their own. Harris then brushed away Americans’ concerns about losing their health coverage with a flick of the wrist: “Let’s move on.”

There are a number of Americans—fewer than 5 percent of Americans—who’ve got cut-rate plans that don’t offer real financial protection in the event of a serious illness or an accident. Remember, before the Affordable Care Act, these bad-apple insurers had free rein every single year to limit the care that you received, or use minor preexisting conditions to jack up your premiums or bill you into bankruptcy. So a lot of people thought they were buying coverage, and it turned out not to be so good.

Obama minimized both the number of people with cancelled plans—“only” a few million—and the quality of the coverage they held. The message was clear: You may think you had good health coverage, but I know better.

It’s Not About Health Care

Some people wonder why I continue to write about the well-heeled Obamacare supporters—including heads of exchanges—who refuse to buy Obamacare coverage for themselves. For a very simple reason: Those individuals, and Harris, and Obama’s remarks all get at the very same point. Obamacare, and single-payer coverage, aren’t really about health care—they’re about power.

Liberal elites consider themselves intellectually superior to the great unwashed masses, whom they must protect from themselves. That reasoning motivates Obamacare’s “consumer protections,” which act to prevent people from becoming consumers, because liberals don’t want individuals to buy health plans lacking all the features they consider “essential.”

An Ironic Campaign Start

The day before her CNN town hall, Harris launched her campaign in Oakland. At the event, which included her campaign slogan, “For the People,” Harris claimed she will “treat all people with dignity and respect.” In making those comments, Harris likely wanted to contrast herself with President Trump’s tone—his temperament, tweets, and so forth.

But one can make an equally compelling argument that Harris’ platform, and her comments one day later, belied her own rhetoric. Pledging to terminate the health coverage of nearly 300 million people might strike some as treating the American people with a distinct lack of respect.

While Democrats may want to make the 2020 campaign a referendum on Trump, elections also present voters with choices. If their party nominates a candidate who reprises liberals’ past mistakes of talking down to voters—“deplorables,” anyone?—they might face a second straight election night shocker.

This post was originally published at The Federalist.

Is Donald Trump “Sabotaging” Obamacare?

Is Donald Trump “sabotaging” Obamacare? And are he and his administration violating the law to do so?

Democrats intend to make this issue a prime focus of their political messaging ahead of the November elections. And several developments over the month of August — a Government Accountability Office (GAO) report, a New York Times op-ed by two legal scholars, and a lawsuit filed by several cities — all include specific points and charges related to that theme.

1. The GAO Report

The most recent data point comes from the GAO, which at the behest of several congressional Democrats analyzed the administration’s outreach efforts during the most recent open enrollment period last fall. Those efforts culminated in a report GAO released Thursday.

The report made a persuasive case that the administration’s decision to reduce and re-prioritize funding for enrollment navigators utilized flawed data and methods. While the Department of Health and Human Services (HHS) based navigators’ 2018 funding on their effectiveness in enrolling individuals in coverage in prior years, GAO noted that HHS lacked solid data on navigators’ enrollment on which to base 2018 funding, and that enrollment was but one of navigators’ stated goals in prior years. HHS agreed with GAO’s recommendation that it should provide clearer goals and performance metrics for navigators to meet.

GAO also recommended that the administration reinstitute an overall enrollment target, as one way to determine the adequate distribution of resources during open enrollment. However, a cynic might note that Obamacare advocates, including the Democratic lawmakers who requested the report, may want the Trump administration to publicize an enrollment target primarily so they can attack HHS if the department does not achieve its goals.

Even though reporters and liberals like Andy Slavitt cried foul last year when HHS announced planned maintenance time for healthcare.gov in advance, actual downtime for the site dropped precipitously in 2018 compared to 2017. Which could lead one to ask who is sabotaging whom.

2. The New York Times Article

In The New York Times piece, law professors Nicholas Bagley and Abbe Gluck provide an overview of the lawsuit filed against the Trump Administration (about which more below). As someone who has cited Bagley’s work in the past, I find the article unpersuasive, even disappointing.

Take for instance some of the article’s specific allegations:

Here’s one: “To make it harder for people to enroll in Obamacare plans, for example, the administration shortened the open enrollment period on the health care exchanges from three months to six weeks.”

This charge would have evaporated entirely had Bagley specified which Administration first proposed shortening the open enrollment period to six weeks. The Obama Administration did just that.

This rule also establishes dates for the individual market annual open enrollment period for future benefit years. For 2017 and 2018, we will maintain the same open enrollment period we adopted for 2016—that is, November 1 of the year preceding the benefit year through January 31 of the benefit year, and for 2019 and later benefit years, we are establishing an open enrollment period of November 1 through December 15 of the year preceding the benefit year.

The Trump administration merely took the shorter open enrollment period that the Obama team proposed for 2019 and accelerated it by one year. If shortening the enrollment period would make it so much “harder for people to enroll in Obamacare plans,” as Bagley and Gluck claim, then why did the Obama Administration propose this change?

Another allegation: “To sow chaos in the insurance markets, Mr. Trump toyed for nine months with the idea of eliminating a crucial funding stream for Obamacare known as cost-sharing payments. After he cut off those funds, he boasted that Obamacare was ‘being dismantled.’”

This charge seems particularly specious — because Bagley himself has admitted that Obamacare lacks a constitutional appropriation for the cost-sharing reduction payments to insurers. Bagley previously mentioned that he took no small amount of grief from the left for conceding that President Obama had exceeded his constitutional authority. For him to turn around and now claim that Trump violated his constitutional authority by ending unconstitutional payments represents a disingenuous argument.

Here and elsewhere, Bagley might argue that Trump’s rhetoric — talk of Obamacare “being dismantled,” for instance — suggests corrupt intent. I will gladly stipulate that presidential claims Obamacare is “dead” are both inaccurate and unhelpful. But regardless of what the President says, if the President does what Bagley himself thinks necessary to comport with the Constitution, how on earth can Bagley criticize him for violating his oath of office?

A third allegation:

This month, the Trump administration dealt what may be its biggest blow yet to the insurance markets. In a new rule, it announced that insurers will have more latitude to sell ‘short-term’ health plans that are exempt from the Affordable Care Act’s rules. These plans … had previously been limited to three months.

Under Mr. Trump’s new rule, however, such plans can last for 364 days and can be renewed for up to three years. … In effect, these rules are creating a cheap form of ‘junk’ coverage that does not have to meet the higher standards of Obamacare. This sort of splintering of the insurance markets is not allowed under the Affordable Care Act as Congress drafted it.

This claim also fails on multiple levels. First, if Congress wanted to prohibit “short-term” health plans as part of Obamacare, it could have done so. Congress chose first to allow these plans to continue to exist, and second to exempt these plans from all of Obamacare’s regulatory regime. If Bagley and Gluck have an objection to the splintering of insurance markets, then they should take it up with Congress.

Second, the so-called “new rule” Bagley and Gluck refer to only reverts back to a definition of short-term coverage that existed under the Obama Administration. This definition existed for nearly two decades, from when Congress passed the Health Insurance Portability and Accountability Act (HIPAA) through 2016. The Obama administration published a rule intended to eliminate much of the market for this type of coverage — but it did so only in the fall of that year, more than two years after Obamacare’s major coverage provisions took effect.

As with the shortening of the open enrollment period discussed above, if Bagley and Gluck want to scream “Sabotage!” regarding the Trump administration’s actions, they also must point the finger at Barack Obama for similar actions. That they did not suggests the partisan, and ultimately flawed, nature of their analysis.

3. The Lawsuit

The 128-page complaint filed by the city plaintiffs earlier this month makes some of the same points as the New York Times op-ed. It also continues the same pattern of blaming the Trump administration for actions previously taken by the Obama administration.

The lawsuit criticizes numerous elements of the administration’s April rule setting out the payment parameters for the 2019 Exchange year. For instance, it criticizes the removal of language requiring Exchanges to provide a direct notification to individuals before discontinuing their eligibility for subsidies, if individuals fail to reconcile the subsidies they received in prior years with the amount they qualified for based on their income. (Estimated subsidies, which are based on projected income for a year, can vary significantly from the actual subsidy levels one qualifies for, based on changes in income due to a promotion, change in life status, etc.)

As part of this charge, the lawsuit includes an important nugget: The relevant regulation “was amended in 2016 to specify that an Exchange may not deny [subsidies] under this provision ‘unless direct notification is first sent to the tax filer.’” As with the New York Times op-ed outlined above, those claiming “sabotage” are doing so because the Trump administration decided to revert to a prior regulatory definition used by the Obama administration for the first several years of Obamacare implementation.

The lawsuit similarly complains that the Trump administration is “making it harder to compare insurance plans” by eliminating support for “standardized options” from the Exchange. Here again, the complaint notes that “prior rules supported ‘standardized options,’” while mentioning only in a footnote that the rules implementing the “standardized options” took effect for the 2017 plan year. In other words, the Obama administration did not establish “standardized options” for the 2014, 2015, or 2016 plan years. Were they “sabotaging” Obamacare by failing to do so?

The suit continues with these types of claims, which collectively amount to legalistic whining that the Trump administration has not implemented Obamacare in a manner the (liberal) plaintiffs would support. It even includes this noteworthy assertion:

Maryland has been cleared by state legislators to petition CMS to ‘establish a reinsurance program that would create a pot of money for insurers to cover the most expensive claims,’ but a health economist ‘said he would be shocked if the Trump administration approved such a request, given its efforts to weaken Obamacare’: ‘It just seems very unlikely to me that Trump would approve this. … Maryland is easily saying we want to help prop up Obamacare, which the Trump administration doesn’t want to have anything to do with.’

Fact: The Trump administration just approved Maryland’s insurance waiver this week. So much for that “sabotage.”

A review of its “prayer for relief” — the plaintiffs’ request for actions the court should take — shows the ridiculously sweeping nature of the lawsuit’s claims. Among other things, the plaintiffs want the court to order the defendants to “comply with their constitutional obligation to take care to faithfully execute the ACA,” including by doing the following:

  • “Expand, rather than suppress, the number of individuals and families obtaining health insurance through ACA exchanges;
  • “Reduce, rather than increase, premiums for health insurance in the ACA exchanges;
  • “Promote, rather than diminish, the availability of comprehensive, reasonably-priced health insurance for individuals and families with preexisting conditions;
  • “Encourage, rather than discourage, individuals and families to obtain health insurance that provides the coverage that Congress, in the ACA, determined is necessary to protect American families against the physical and economic devastation that results from lesser insurance, with limits on coverage that leaves them unable to cover the costs of an accident or unexpected illness…
  • “Order Defendants to fully fund advertising under the ACA;
  • “Enjoin Defendants from producing and disseminating advertisements that aim to undermine the ACA;
  • “Order Defendants to fully fund Navigators under the ACA;
  • “Enjoin Defendants from incentivizing Navigators to advertise non-ACA compliant plans;
  • “Order Defendants to lengthen the open enrollment period;
  • “Order Defendants to resume participation in enrollment events and other outreach activities under the ACA…
  • “Order Defendants to process states’ waiver applications under the ACA so as to faithfully implement the Act.”

In other words, the lawsuit asks a court to micro-manage every possible element of implementation of a 2,700-page law — tell HHS what it must say, what it must do, how much it must spend, and on and on. It would create de facto entitlements, by stating that HHS could never reduce funding for advertising and outreach, or lower spending on navigators, or reject states’ waiver applications — potentially even if those applications violate the law itself. And it asks for impossible actions — because HHS cannot unilaterally “expand, rather than suppress” the number of people with coverage, just as it cannot unilaterally “reduce, rather than increase, premiums.”

Despite its questionable claims, and the highly questionable remedies it seeks, the lawsuit may yet accomplish some of its goals. The complaint spends much of its time alleging violations of the Administrative Procedure Act, claiming that HHS did not “meaningfully” or “adequately” consider comments from individuals who objected to the regulatory changes in question. While I have not examined the relevant regulatory dockets in any level of detail, the (pardon the pun) trumped-up nature of elements of the complaint makes me skeptical of such assertions. That said, the administration has suffered several setbacks in court over complaints regarding the regulatory process, so the lawsuit may force HHS to ensure it has its proverbial “i”s dotted and “t”s crossed before proceeding with further changes.

Words Versus Actions

On many levels, the “sabotage” allegations try to use the president’s own words (and tweets) against him. Other lawsuits have done likewise, with varying degrees of success. As I noted above, the president’s rhetoric often does not reflect the actual reality that Obamacare remains much more entrenched than conservatives like myself would like.

But for all their complaints about the administration’s “sabotage,” liberals have no one to blame but themselves for the current situation. Obamacare gave a tremendous amount of authority to the federal bureaucracy to implement its myriad edicts. They should not be surprised when someone who disagrees with them uses that vast power to accomplish what they view as malign ends. Perhaps next time they should think again before proceeding down a road that gives government such significant authority. They won’t, but they should.

This post was originally published at The Federalist.

Congress Needs to Eat Its Spinach

The tax bill’s effective repeal of Obamacare’s individual mandate briefly reprised the “broccoli mandate”—whether, as Justice Antonin Scalia asked during Supreme Court oral arguments on Obamacare in March 2012, the federal government could compel individuals to purchase certain foods.

But instead of broccoli, spinach might serve as a more apt analogy, for the way the tax bill came to repeal the mandate demonstrates the ways Congress refuses to eat its policy spinach, following the path of least resistance in making easy choices rather than tough ones.

Avoiding Tough Choices on Taxes

Cotton said the “looks of hesitance and outright terror on the faces of my colleagues” convinced him that Republicans had to repeal the mandate as part of the tax package. Translation: Republicans thought it easier to obtain revenue from repealing the mandate than to weed out the tax code of popular tax breaks—the point of tax reform, which Republicans initially sold as a way to simplify the Internal Revenue Code.

Remember how Speaker of the House Paul Ryan (R-WI) sold tax reform as a way to allow Americans to complete their taxes on a postcard? That type of reform didn’t happen, because enacting that reform would have involved eliminating many more popular deductions than the final tax bill ended.

Revenue Neutrality and Spending

Another key point in the tax debate surrounded the issue of revenue neutrality. The “Better Way” platform released by House Republicans last year not only “envision[ed] tax reform that is revenue neutral,” it included a very clear standard for that metric: “House Republicans measure revenue neutrality by reference to a ‘current policy baseline’—i.e., achieving a level of federal revenues that is approximately $400 billion less over the ten-year [budgetary] window than the current law baseline.”

Congress may have valid justifications for reducing revenues, such as to increase economic growth, or to shrink the size of government. But the fact remains that, when faced with enacting a supposed “parade of horribles” to achieve a revenue-neutral tax bill, Congress chose to change the nature of the bill rather than to make the tough choices needed to achieve its original benchmark.

Likewise on spending reductions arising from the tax bill. Because the tax measure increased the federal deficit, the Statutory Pay-as-You-Go (PAYGO) act would normally require commensurate spending cuts offsetting the revenue loss. However, rather than allow these reductions to go into effect—or replacing the proverbial hatchet of automatic cuts with more targeted spending reductions—both Republicans and Democrats voted to exempt the tax bill from the PAYGO law, ducking another difficult choice.

Repeal Only Unpopular Parts of Obamacare

Repealing only Obamacare’s individual mandate—one of the most loathed parts of the 2010 health care law—echoes a problem Republicans faced during the “repeal-and-replace” debate last year: Many want to retain popular elements of the law, while repealing its unpopular features. Witness Republicans’ statements of support for keeping the status quo on pre-existing condition exclusions.

By repealing the unpopular parts of Obamacare but retaining the popular parts, Congress may have created an incoherent, and potentially unstable, policy that results in premium increases, infusions of taxpayer cash to “stabilize” markets, or both. Senate Republican leaders have already proposed the latter, precisely because they fear the political effects if the former occur.

Therein lies the problem with the congressional strategy: Avoiding tough choices generally only postpones them for a time—not forever. If insurers decide to leave markets after the mandate’s repeal takes effect in 2019, Congress will have to fix a problem it helped create. Likewise attempts by today’s Congress to reduce taxes, and not reduce spending, in shifting the blame to future generations.

At some point those bills will come due, so Congress might want to consider actually making some tough choices now, rather than creating even tougher choices in years to come.

This post was originally published at The Federalist.

Repealing Obamacare Is about the Regulations, Stupid

As Congress considers repealing Obamacare’s individual mandate as part of tax reform, some conservatives believe doing so would “fulfill [Republicans’] promise to the American people” by “return[ing] personal decisions about health care choices to patients.”

In reality, however, repealing only the mandate would accomplish little of the former, and virtually none of the latter. For this conservative, at least, the answer to what would fulfill Republicans’ promise echoes James Carville: At its core, an Obamacare repeal is about the regulations, stupid.

We Don’t Want to Own the Consequences of Our Policies

In 2009, Democrats probably didn’t want to subject themselves to attacks for spending trillions of dollars on new entitlements. They didn’t want to take the political hit for raising taxes and reducing Medicare spending to pay for those entitlements. Also, Democrats—not least Barack “Mandate to Buy a House” Obama, who ran against the mandate in the 2008 presidential primaries—certainly didn’t want to require individuals to purchase government-mandated insurance.

But they realized that imposing unprecedented federal regulations on insurers would raise premiums, necessitating requirements on employers to offer, and individuals to purchase, that costlier coverage, higher spending on subsidies to make that more expensive coverage “affordable,” and new taxes to pay for that higher spending.

By contrast, repealing only the mandate would do nothing to restore health-care freedom, or “return health care choices to patients.” While Americans would not face taxes for not buying coverage they may not want, need, or afford, they would have no greater or lesser ability to buy coverage they do want and can afford than they did in the first place, because all of Obamacare’s regulations would remain in place.

But neither proposal undermined Obamacare’s central principle: That Washington can and should impose myriad regulations on insurers. In fact, by creating an opt-out process at the federal level, both bills effectively reinforced Washington’s control of health insurance.

Both Parties Want to Control Americans’ Health Choices

It’s worth emphasizing the unprecedented nature of the change Obamacare wrought. Since 1947’s McCarran-Ferguson Act, which devolved regulation of insurance to states, the federal government made few and minimal intrusions into health insurance markets—until Obamacare. Yet purportedly conservative lawmakers have not pushed back on this breach of Tenth Amendment principles, with Washington intruding into states’ business.

For instance, Sen. Lindsey Graham (R-SC) claimed the proposal he and Sen. Bill Cassidy (R-LA) introduced would “empower each individual state to choose the path that works best for them.” Unfortunately, however, that plan would keep in place federal dictates regarding pre-existing conditions—the most costly of all the Obamacare mandates. There are other, arguably better, ways to cover individuals with pre-existing conditions than a federally imposed requirement, but by keeping control in Washington, the Graham-Cassidy plan would effectively preclude states from exploring them.

Two years ago, for procedural and tactical reasons, Republicans chose not to attach provisions repealing Obamacare’s insurance regulations to the repeal bill that went to President Obama’s desk. If they fail to repeal—not waive, or opt-out, but repeal—the regulations this time around, they will undermine federalism and fail to meet their promise to eradicate Obamacare “root and branch.”

For both the Tenth Amendment and the American people looking for relief from Obamacare’s spiraling costs, the stakes couldn’t be higher.

This post was originally published at The Federalist.

Democrats Talking Down Obamacare

It appears that analysts at the Center for American Progress (CAP) have taken up weightlifting in recent weeks, as their health-care team on Monday released a report that represented little more than an attempt to move the Obamacare goalposts. Released ahead of this morning’s start of the 2018 open enrollment period, the “analysis” claimed that, but for the Trump administration’s “sabotage” of Obamacare, enrollment in insurance exchanges would—wait for it—remain unchanged from current year levels.

So in CAP’s view, any decline in exchange enrollment lies entirely at Trump’s feet, but any increase in enrollment comes despite Trump, not because of him. (Funny that.) CAP demonstrated its complete confidence in the effect of Trump’s “sabotage” by failing to make any specific estimate or prediction about how much enrollment would decline due to the president’s actions. The paper discussed Obamacare, but its soft bigotry of low expectations—both for the exchanges and the accuracy of CAP’s own predictions—sounded straight out of the debate on No Child Left Behind.

Their Logic Says Obama Sabotaged His Own Program

But the decision to shorten the open enrollment period was first made by none other than those infamous “saboteurs” Barack Obama and Obama official Andy Slavitt. In February 2016, they announced that open enrollment in 2019 would range from November 1 to December 15. Upon taking office earlier this year, the Trump administration decided to implement this change a year ahead of time, due in part to the ways in which individuals were “gaming the system”—using the long open enrollment period and readily available special enrollment periods to sign up for coverage only after developing costly medical conditions.

A change? Sure. Sabotage? Only if you think Obama and Slavitt want to dismantle Obamacare.

Then there’s the question of funding for enrollment and outreach, which the Trump administration reduced from $100 million to $10 million. As with all organizations that believe beneficence lies solely through government, CAP claims private efforts “cannot fully make up for the wealth of information that only the government has for outreach, as well as the planning and funding that HHS dedicated to the program in past years.”

So maybe, just maybe, Hillary Clinton could cut short her walks in the woods, and raise money for Obamacare instead of hawking her own books. Who knows—maybe noted clean-energy advocate Tom Steyer will stop tilting at windmills, and run ads supporting Obamacare instead of Trump’s impeachment. Or Clinton could simply open up her checkbook and single-handedly replenish the outreach budget herself, given that she and her husband made $153 million giving speeches over their careers—a figure which puts both the Clintons’ largesse, and the outreach “cuts,” in perspective.

Regardless, having seen their profits double under the last administration, health insurers don’t need taxpayers funding ads encouraging people to buy their products. They have $15 billion in profits from 2015 to do that themselves. (With that much money, they could even reprise Andy Griffith’s ads promoting Obamacare.)

Is It Sabotage to Increase Health Coverage?

In the final category of “sabotage” comes the Trump administration’s decision to cancel cost-sharing reduction payments to insurers—payments that Judge Rosemary Collyer ruled unconstitutional nearly 18 months ago. CAP claims this decision will raise premiums for the 2018 plan year. But the decision will also lead to greater spending on insurance subsidies, and more individuals with health coverage, according to the Congressional Budget Office—outcomes CAP would ordinarily support, but somehow “forgot” to mention in its report.

If the states are so concerned that people will be scared away from the exchanges by the thought of higher premiums, perhaps they should stop yelling about higher premiums. With open enrollment just days away, perhaps the states should focus instead on communicating the message that they have devised a response to the CSR payment termination that will prevent harm to the large majority of people while in fact allowing millions of lower-income people to get a better deal on health insurance in 2018. [Emphasis mine.]

While out on the campaign trail, Obama famously told crowds: “Don’t boo—vote.” Perhaps Obamacare supporters should take the eponym’s advice, and spend less time over the next few weeks whining about “sabotage” over open enrollment and more time actually working to enroll people. And maybe, just maybe, all the Washington elites up in arms about President Trump’s “sabotage” of the law could take a truly radical step, and sign up for Obamacare coverage themselves.

This post was originally published at The Federalist.

The Constitution Finally Takes Precedence over Obamacare

Late Thursday evening, the Administration announced that it was immediately ending cost-sharing reduction payments to health insurers offering plans in Obamacare Exchanges. And regardless of what the press or liberals might claim, the decision isn’t, or shouldn’t be, about “sabotage.” It isn’t, or shouldn’t be, about Obamacare “imploding.” It’s about one thing—and one thing only: The rule of law.

The text of Obamacare nowhere includes an appropriation for the cost-sharing reduction payments, which reimburse carriers for discounting deductibles and co-payments for low-income Exchange enrollees. The Obama Administration knew that—but went ahead and made the payments anyway. One slight problem: The Constitution clearly gives the “power of the purse” to Congress: “No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law.”

Without an appropriation, the Trump Administration has no choice but to end the payments to insurers—just as the Trump Administration would have no choice but to make the payments to insurers if an appropriation existed. One can easily make the argument—as this observer has—that the Administration should have ended the payments months ago.

But in time the Trump Administration did conclude—correctly—that President Obama had no more authority to make Obamacare payments without an appropriation than President Trump has to make payments for a border wall without an appropriation. By complying with the law and the Constitution to end the payments, President Trump actually diminished his executive power and ability to act unilaterally—restoring a rightful balance of power between the branches. Democrats fearful of the implications of three more years of a Donald Trump in the White House have reason to thank him for so doing.

But they won’t. Instead the cries of “sabotage” will continue—disregarding the fact that President Obama, by valuing Obamacare more than the Constitution itself, sabotaged the rule of law. When Tom Price resigned as Secretary of Health and Human Services last month, Senate Finance Committee Ranking Member Ron Wyden (D-OR) said his replacement “needs to be focused on implementing the law as written.” By cutting off the cost-sharing payments, that’s exactly what the Trump Administration has done—implemented the law as it was written, rather than as Democrats wished they had written it.

As for insurers, they can’t say they weren’t warned. Here’s what yours truly wrote about cost-sharing reduction payments nearly a year and a half ago:

The next President could easily wade into the [cost-sharing reduction payments]. Say a Republican is elected and he opts to stop the Treasury making payments related to the subsidies absent an express appropriation from Congress. Such an action could take effect almost immediately…Come January 2017, the policy landscape for insurers could look far different [than under the Obama Administration.]

That’s exactly what happened. Insurers gambled that they—and Obamacare—were “too big to fail,” despite a court ruling last May striking down the subsidy payments as unconstitutional. Because the court stayed that ruling, insurers assumed the next President would blithely continue the unconstitutional payments during its appeal. They assumed wrong.

Congress, having sparked the lawsuit when the House of Representatives sued to protect its constitutional prerogatives, could of course use its “power of the purse” to reinstate the cost-sharing reduction subsidies—this time through an explicit appropriation, rather than executive fiat. But before even considering such an action, it should first thoroughly investigate, and develop policies to eradicate, the “too big to fail” mentality that led insurers—and state insurance commissioners—to assume that unconstitutional acts would continue in perpetuity. Even better, Congress could instead develop ways to dismantle the structure of regulations and mandates that insurers believe requires them to receive $135 billion in subsidy payments in the first place.

For the time being, individuals likely will not see any direct effects from the payments ceasing. Carriers cannot exit Exchanges mid-year, and contracts for the 2018 plan year are already signed. (A provision in carriers’ 2017 and 2018 contracts lets them exit Exchanges if enrollees do not receive cost-sharing reductions—not if the insurers themselves do not receive reimbursement for those cost-sharing reductions. This clause, awkwardly drafted by insurers’ counsel, may provide them with little legal recourse—and further highlights their questionable assumptions and behavior surrounding the subsidies.) So maybe—just maybe—Washington can spend some time focusing on the real issue behind the Administration’s action: Upholding the Constitution.

“Problem Solvers'” Obamacare Solution: Single Payer

On Monday, a bipartisan Problem Solvers Caucus in the House released their list of “solutions” regarding Obamacare. Developed over the past several months, the list can easily be summed up in a single phrase: Single payer.

The lawmakers didn’t come out and say as much, of course, but that would be the net result. In funding more bailout spending for insurers, the proposal clearly states that Obamacare is “too big to fail”—that no amount of taxpayer funding is too great to keep insurers offering coverage on the health exchanges. Enacting that government backstop would create a de facto single-payer health-care system—only with many more well-priced insurer lobbyists around to demand more crony capitalist payments from government to their industry.

Cost-Sharing Reductions

In this scenario, how likely would you be just to give the burglar your property, so he could have the resources he needs? Probably not very. On the one hand, that would solve the burglar’s immediate problem, but the burglar broke the law—and ignoring that offense will only encourage future law-breaking.

That’s essentially the scenario facing Obamacare’s cost-sharing reduction payments, meant to subsidize discounted co-payments and deductibles for certain low-income individuals. Obamacare didn’t include an actual appropriation for the payments, so Barack Obama just made one up that didn’t exist. In essence, he stole both the constitutional spending power of Congress and taxpayer funds—recall that spending money without an appropriation is not just a civil, but a criminal, offense—to get Obamacare started.

Yet Congress seems far more worried about propping up Obamacare than holding President Obama to account—focusing solely on the outcomes to individuals, while caring not a whit for the effects on the rule of law. The Problem Solvers Caucus plan includes cost-sharing reduction payments with no accountability for the Obama Administration’s flagrant violation of the Constitution.

Reinsurance

The Problem Solvers Caucus plan also includes “stability fund” dollars designed to subsidize insurers for covering high-cost Obamacare enrollees. But here again, the proposal throws good money after bad at insurers, creating a new government program after non-partisan auditors concluded that insurers illegally received billions of dollars from the last federal bailout.

Last September, the Government Accountability Office (GAO) concluded that the Obama administration illegally funneled billions of dollars in reinsurance funds to health insurers rather than the U.S. Treasury. After taking in “assessments” (read: taxes) from employers, the text of Obamacare itself requires the government to repay $5 billion to the Treasury (to offset the cost of another Obamacare program) before paying health insurers reinsurance funds.

But when employer “assessments” generated less money than originally contemplated, the Obama administration put insurers’ needs for bailout funds over the law—and taxpayers’ interests. GAO found the Obama administration’s actions violated the law, costing taxpayers billions in the process.

Throwing Money at Problems

In general, the Problem Solvers Caucus attempts to solve problems by throwing money at them, by paying tens of billions of dollars (at minimum) to insurers. But as Margaret Thatcher pointed out four decades ago, socialism always runs out of other people’s money—a problem that the proposal wouldn’t solve, but worsen.

The Problem Solvers Caucus proposal amounts to little more than an Obamacare TARP—that’s Turning Against Repeal Promises (or Taking Away Repeal Promises, if you prefer). In abandoning the repeal cause, and setting up a federal backstop for the entire health-care system, the plan would create a de facto single-payer health-care system. Bernie Sanders would be proud.

This post was originally published at The Federalist.

The Implications of Trump and Schumer’s Argument over Cost-Sharing Reduction Payments

Leaders in both parties engaged in rhetorical bluster over the weekend regarding Obamacare’s cost-sharing reductions. Those payments to insurers for lowering deductibles and co-payments—ruled unconstitutional by a federal district court judge last May—remain in political limbo, and a subject of no small controversy.

But the rhetorical exchanges yielded inconvenient truths, both for Democratic leaders demanding the Trump administration continue the payments, and for the president himself, who has threatened to stop them.

Schumer: If the Payments Are Constitutional, Trump Can’t Withhold Them

Schumer therefore implicitly admitted—as elsewhere—that the payments are not only illegal, but unconstitutional. Obamacare lacks an explicit appropriation for the cost-sharing reduction payments. That’s the reason Judge Rosemary Collyer ruled the Obama administration’s actions in making said payments unconstitutional last year. (The ruling is currently stayed pending appeals.)

As one summary of the case noted, Train v. City of New York established the principle that “the President cannot frustrate the will of Congress by killing a program through impoundment.” Yet Schumer, in asking the Trump administration to continue making payments to a program that Congress never funded in the first place, wants the executive unilaterally—and unconstitutionally—to frustrate the expressed will of the legislative branch, thereby diminishing Schumer’s own authority as a lawmaker.

It’s highly likely Schumer, a lawyer who spent several years serving on both the House and Senate judiciary committees, knows full well the nature of unconstitutional actions, begun by the last administration, that he wants the current one to continue. But if he wants to have any credibility on the rule of law—whether criticizing the Trump administration’s other “abuses,” or standing up for the independence of the Russia investigation—he would be wise to 1) admit that the Obama administration violated the Constitution in making the payments to begin with and 2) hold the last administration just as accountable as he wants to hold the current president.

Trump: Upholding the Constitution Is a Choice

But for the president, as for Schumer, the question of the cost-sharing reduction payments should come down to a binary choice: Does a lawful appropriation for CSRs exist, or not? If a lawful appropriation exists, then the president must make the payments, consistent with Train v. City of New York outlined above. If a lawful appropriation does not exist, then the president must not make the payments, consistent with both Article 1, Section 9, Clause 7 of the Constitution—“No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law”—his duty to “take Care that the laws be faithfully executed,” and his oath of office.

This conservative believes President Trump should have cancelled the CSR payments within days of taking office, not because it would have been popular—it likely would not have been—but because the rule of law demands it. Likewise, President Trump should have long since undone billions of dollars in reinsurance payments to insurers that the Government Accountability Office found illegal, and cancelled the “grandmothered” plans President Obama allowed some individuals to keep in 2014—violating his constitutional duty to “take Care that the laws be fully executed” in the process.

Making a clean break with the numerous legal and constitutional violations the Obama administration perpetrated to keep Obamacare afloat early in his administration would have demonstrated President Trump’s desire to escape the executive unilateralism of his predecessor.

Government of Laws, Or of Men?

That Barack Obama, a constitutional law professor, bequeathed such legal gamesmanship and a culture of inherently arbitrary actions to both parties stands as one element of his legacy. As the debate this weekend demonstrated, that legacy has affected—and infected—our constitutional discourse, and not for the better.

This post was originally published in The Federalist.

Schumer Admits Obama Violated the Constitution

Last week, one of Washington’s leading Democrats made what should be considered a stunning admission, yet few in the media bothered to notice, or care. In response to comments from Senate Majority Leader Mitch McConnell (R-KY) about a potential bailout of Obamacare insurers, Minority Leader Chuck Schumer (D-NY) said: “Democrats are eager to work with Republicans to stabilize the markets and improve [Obamacare]. At the top of the list should be ensuring cost-sharing payments are permanent, which will protect health care for millions.”

Schumer’s statement contradicts the Obama administration, which argued in federal court that the cost-sharing reductions are already permanent. It’s also an implicit admission that the Obama administration violated both the U.S. Constitution and federal criminal statutes by spending funds without an appropriation.

Not wanting to be bound by such niceties as the rule of law, the Obama administration started making the payments to insurers anyway, claiming the “text and structure” of Obamacare allowed them to do so. The House of Representatives sued, claiming a violation of its constitutional “power of the purse,” and last May, Judge Rosemary Collyer agreed, ruling that the administration violated the Constitution.

Schumer Admits Constitutional Violation

Schumer’s statement last Thursday stands out because the Obama administration and House Minority Leader Nancy Pelosi (D-CA) have claimed, both in court and elsewhere, that Obamacare made a permanent appropriation for the cost-sharing payments. The law did no such thing, and a federal district court judge so ruled, but they attempted to argue that it did.

By conceding that Obamacare lacks a permanent appropriation for cost-sharing reductions, Schumer’s admission raises some interesting questions. The Obama administration requested an explicit appropriation for the cost-sharing reduction payments, a request Congress promptly denied. If there isn’t a permanent appropriation for cost-sharing payments in Obamacare—as Schumer admitted—then the Obama administration spent money without an appropriation.

The Anti-Deficiency Act includes not just civil, but criminal, penalties: “An officer or employee of the United States Government or of the District of Columbia government knowingly and willfully violating [the Act] shall be fined not more than $5,000, imprisoned for not more than 2 years, or both.”

By calling on Congress to “ensure” permanent cost-sharing reductions, Schumer has essentially admitted that President Obama violated the Constitution, and members of his administration may have violated federal criminal statutes by spending money without an appropriation. This prompts one other obvious question: When will Schumer endorse a special counsel to investigate these matters?

Don’t Endorse Law-Breaking

In deciding to pay the cost-sharing subsidies without an appropriation, the Obama administration and its allies have endorsed a strategy of ends justifying means: They wanted to provide health insurance to more Americans, therefore it was acceptable to violate the Constitution. And if the administration violated the Constitution long enough, and on a big enough scale, they could change the law to meet their will. Now that a federal court has ruled that President Obama did in fact violate the Constitution, that’s exactly what Pelosi and Schumer want to do: Change the law to accommodate the Obama administration’s law-breaking.

Only after those weighty issues have been examined and adjudicated fully should Congress debate whether to appropriate funds for the cost-sharing reductions. To do otherwise would undermine the Constitution that members of Congress vowed to uphold, and further encourage the kind of flagrant law-breaking seen in the Obama administration.

This post was originally published at The Federalist.